Allahabad High Court
State Of U.P. Through Executive ... vs Shiv Pujan And Others on 11 January, 2023
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- WRIT - C No. - 33683 of 2001
Petitioner :- State of U.P. through Executive Engineer, Drainage Division, Siddharthnagar
Respondent :- Shiv Pujan And Others
Counsel for Petitioner :- S.C.
Counsel for Respondent :- C.S.C.,Mata Prasad,Shyam Narain,Sudhanshu Narain
Hon'ble Rohit Ranjan Agarwal,J.
1. Heard learned Standing Counsel for the State and Sri Sudhanshu Narain, learned counsel for respondent No.1.
2. This writ petition has been filed assailing the award dated 28.01.1999, published on 15.5.1999, and the order dated 25.06.2001passed on the Review Application filed by petitioner.
3. The respondent No.1 had raised an industrial dispute and the matter was referred by the State Government to the Labour Court. The claim of the workman/respondent No.1 was that he worked as daily wager in the Irrigation Department from 01.7.1978 to 15.10.1978 and thereafter from 01.7.1979 to 15.10.1979 on work charge basis and thereafter from 16.10.1978 to 30.06.1979 and 16.10.1979 to 15.10.1981 on muster role as a Gardner. The services of the workman was disengaged by the employer from 01.7.1987. The petitioner/Department contested the matter and filed its reply before the Labour Court and the Labour Court, after considering the reply, gave an award on 28.01.1999 directing for reinstatement of respondent No.1 with the backwages. The Department filed review application, which was also dismissed by the Labour Court, hence the present petition.
4. Sri Ajay Singh, learned Standing Counsel appearing for the State submitted that the Labour Court was not competent to pass the award under challenge as the Irrigation Department is not an 'industry' defined under the Industrial Disputes Act, 1947 (hereinafter called as "Act of 1947") and the matter has already been settled by the Apex Court in Executive Engineer (State of Karnataka) vs. K.Somasetty and others, 1997(5) SCC 434. He has further relied upon decision of coordinate Bench of this Court in State of U.P. vs. Labour Court U.P. Haldwani, Distt. Nainital and others 1999 (1) E.S.C. 371 (All.). He further submitted that the workman, during his cross-examination, has accepted that he was a daily wager and was engaged in service when there was requirement by the Department.
5. According to learned Standing Counsel, the Labour Court had not recorded any finding as to the working of 240 days in the award of the year 1999.
6. Sri Sudhanshu Narain, learned Counsel appearing for the workman submitted that subsequent to the judgment in case of K.Somasetty and others (supra), the matter in relation to question whether Telecommunication Department was an 'Industry' or not, was referred to the Larger Bench of Supreme Court in G.M. Telecom vs. S.Srinivasan Rao and others, 1998(78) FLR 143 and the Hon'ble Apex Court had held the Telecommunication Department was not included in the definition of "Industry". He then contended that the matter relating to the Irrigation Department has been referred in the case of State of U.P. vs. Jaibir Singh, (2005) 5 SCC 1 to the larger Bench of Apex Court.
7. According to learned counsel, once the judgment in K.Somasetty and others (supra) has been diluted by the Apex Court, the same analogy will apply in the case of Irrigation Department and thus the argument raised by the State counsel does not hold good. He has further relied upon a decision of coordinate Bench of this Court in Civil Misc. Writ Petition No.35086 of 1998 (State of U.P. vs. The Labour Court (II), U.P. Kanpur and another) where this Court considering all the judgments rendered by Apex Court had found that the Irrigation Department stands included in the term "industry" and the writ petition filed by the State was dismissed upholding the award.
8. Sri Sudhanshu Narain, Advocate has fairly conceded that the Labour Court had not recorded any finding as to the working of the workman for 240 days and have submitted that the matter may be remitted back to the Labour Court after setting aside the award.
9. I have heard the respective counsel for the parties and perused the material on record.
10. The matter relating to Irrigation Department being an "industry" or not is still under active consideration of Hon'ble Apex Court in the matter of Jaibir Singh (supra). Only in the case of G.M. Telecom (supra), the Apex Court had diluted the judgment earlier rendered in the case of K.Somasetty and others (supra) and has held that Telecom to be an "industry".
11. This Court finds that the judgment relied by the respondent counsel on the decision of coordinate Bench cannot be taken into note at this stage as the coordinate Bench itself had noted the fact that the matter is under the active consideration of Larger Bench of Hon'ble Supreme Court. Unless and until the dispute is settled by the Apex Court, this Court cannot take a different view.
12. According to this Court, the view taken by the Apex Court in case of K.Somasetty and others (supra) still hold ground as the same has neither been diluted nor a different view has been taken by the Apex Court till date.
13. Now coming to the question of findings recorded by Labour Court, this Court finds that it was mandatory for the Labour Court before making an award and directing for reinstatement of the workman/respondent No.1 alongwith backwages to have recorded a categorical finding as to the working of the workman for 240 days, which the Labour Court has failed to do.
14. Counsel appearing for respondent No.1 has also conceded this fact.
15. Considering the facts and circumstances of the case, this Court finds that as the Labour Court has not recorded any finding as to the working of the workman for 240 days, the award dated 28.01.1999 is unsustainable in the eyes of law and the same is hereby set aside. The matter is remitted back to the Labour Court to decide the same afresh as the question of Irrigation Department whether being an "industry" or not is still under active consideration, this Court does not deem it fit to enter into the arena to adjudicate upon such question at this stage.
16. The writ petition stands partly allowed.
17. The Labour Court shall make every endeavour to adjudicate and decide the case preferably within next three months.
Order Date :- 11.1.2023
Kushal
